Military leave - Indiana

Summary of differences between federal and state regulations

The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not provide protection to members of the National Guard serving the states, nor do such members receive the protections of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) (which was re-written in 2003 as the Servicemembers Civil Relief Act) when in state (rather than federal) service. The state protections listed below are in addition to protections under federal laws.

Under Indiana law, a qualified member of the reserve components of the armed forces; a member of the Ready Reserve; or a member of an organized unit; who leaves a position (other than a temporary position) in order to receive military training not to exceed 15 days in one calendar year, is entitled to be restored to the previous or a similar position with the same status and pay.

Active duty includes training or duty under federal law, as well as state active duty under an order of a governor of another state. Therefore, employees who serve in the national guard of another state will have rights.

To be covered, the person must:

• Provide evidence defining date of departure and date of return for purposes of military training 90 days before the date of departure;
• Provide evidence of the satisfactory completion of the training immediately after the training is completed; and
• Be qualified to perform the duties of the position.

At the discretion of the employer, the leave may be with or without pay. Seniority continues to accrue during a period of absence. Absence for military training does not affect an employee’s right to receive normal vacation, sick leave, bonus, advancement, and other advantages of the employee’s particular position.

Upon return, the person shall be restored to the previous or similar position, with the same status held before leaving for the training period.

Military family leave

An employer that employs at least 50 employees for each working day during each of at least 20 calendar work weeks shall grant an unpaid leave of up to 10 working days per calendar year to an eligible employee. An eligible employee is one who

1. has been employed by an employer for at least 12 months;
2. has worked at least 1,500 hours during the 12 month period immediately preceding the day the leave begins; and
3. is the spouse, parent, grandparent, child (as of 7/1/09), or sibling of a person who is ordered to active duty.

“Active duty” means full-time service on active duty orders in the armed forces of the United States or the National Guard for a period that exceeds 89 consecutive calendar days.

“National Guard” means the Indiana Army National Guard; or the Indiana Air National Guard.

An employee may take a leave of absence during one or more of the following periods:

1. During the 30 days before active duty orders are in effect.
2. During a period in which the person ordered to active duty is on leave while active duty orders are in effect.
3. During the 30 days after the active duty orders are terminated.

An eligible employee may elect, or an employer may require the employee, to substitute any earned paid vacation leave, personal leave, or other paid leave, except for paid medical or sick leave, available to the employee for leave provided for any part of the 10 day period.

An employer shall permit an employee who is taking a leave of absence under this chapter to continue the employee’s health care benefits at the employee’s expense.

An employee who wants to take a leave of absence shall provide written notice, including a copy of the active duty orders if available, to the employer of the date the leave will begin. An employee shall give at least 30 days notice, unless the active duty orders are issued less than 30 days before the date the requested leave is to begin.

An employer may require verification of an employee’s eligibility for the leave. If an employee fails to provide verification required, an employer may consider the absence from employment unexcused.

After taking a leave of absence, an employee must be restored to:

1. the position held before the leave; or
2. an equivalent position, with equivalent seniority, pay, benefits, and other terms and conditions of employment.

An employer is not required to restore an employee to a position described if the employer proves that the reason the employee was not restored is unrelated to the taking of such leave.

State

Contacts

None.

Regulations

Indiana Code Title 10, Article 17, §§ 10-17-4-1 to IC 10-17-4-5

Indiana Code Title 22, Chapter 13, Military Family Leave

Federal

Contacts

DOL’s Veterans’ Employment and Training Service (VETS)

Veterans’ Employment and Training Service (VETS)
200 Constitution Avenue, NW
Room S-1325
Washington, D.C. 20210
Phone: 1-866-4-USA-DOL (1-866-487-2365) or 202-693-4770

Website: www.dol.gov/vets/

Regulations

5 CFR Part 353 Restoration to Duty from Uniformed Service or Compensable Injury

20 CFR Part 1002 Regulations Under the Uniformed Services Employment and Reemployment Rights Act of 1994